Harbin v. Social Security Administration

Filing 29

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RHEANNA S. HARBIN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 13-cv-136-TLW

OPINION AND ORDER
Plaintiff Rheanna S. Harbin seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying her claim for supplemental security income benefits
under Title XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3).
In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a
United States Magistrate Judge. (Dkt. 28). Any appeal of this decision will be directly to the
Tenth Circuit Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the

evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a 36–year old female, first applied for Title XVI benefits on August 14,
2007. (R. 103-06). After plaintiff exhausted her administrative remedies, the case (09-cv-688)
was remanded based on the ALJ’s failure to consider plaintiff’s diagnosis of carpal tunnel
syndrome. (R. 421-41). While that case was pending, plaintiff again applied for Title XVI
benefits on March 3, 2011. (R. 444). Upon receipt of the order remanding the initial application,
the Appeals Council consolidated the cases. (R. 442-44). Plaintiff claimed that she had been
unable to work since March 1, 2007, due to multiple physical and mental issues, including
osteoarthritis, neuropathy, degenerative disc disease, carpal tunnel syndrome, migraines and
daily headaches, depression, anxiety, and obesity. (R. 577). The ALJ held a consolidated hearing
on plaintiff’s claims on November 2, 2011. (R. 377-408). The ALJ issued a decision on January
27, 2012, denying benefits and finding plaintiff not disabled because she was able to perform
other work. (R. 314-36). The Appeals Council denied review, and plaintiff appealed. (R. 31113).
The ALJ’s Decision
The ALJ found that plaintiff had not engaged in substantial gainful activity since her
application date. (R. 319). Plaintiff had severe impairments of “degenerative disc disease and
degenerative joint disease of the cervical and lumbar spine, carpal tunnel syndrome, adjustment

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disorder and anxiety disorder.” (R. 319). Plaintiff’s impairments did not meet or medically equal
a listing. (R. 320).
With respect to plaintiff’s mental impairments, the ALJ reviewed the “paragraph B”
criteria and found that plaintiff had mild limitations in activities of daily living and moderate
limitations in social functioning and in concentration, persistence, and pace. (R. 320-21). In
making the “paragraph B” findings, the ALJ accepted the May 2011 opinion of Dr. Jeri Fritz and
rejected the August 2010 opinion of Dr. Stephanie Crall. (R. 319-20). The ALJ noted that while
Dr. Crall diagnosed plaintiff with a cognitive disorder, that finding was “based on an object
recall test.” (R. 319). In contrast, the ALJ found the Dr. Fritz’s opinion was based on multiple
objective tests, including the Wechsler intelligence test and the Folstein-Mini-Mental Status test.
(R. 319-20). After weighing the opinions of these two consultative examining psychologists, the
ALJ found that plaintiff’s cognitive disorder was not severe. Id.
The ALJ then reviewed plaintiff’s testimony, as well as the tests and notes from her
treating physicians. (R. 322-25). Objective testing revealed that plaintiff had “mild carpal tunnel
syndrome in her right wrist;” mild scoliosis; degenerative spondylosis of her cervical spine; disc
protrusion at L5-S1; and degenerative disc disease. (R. 323-24). The ALJ’s decision implicitly
accepts all of the treating physician’s diagnoses and notes. (R. 323-25). Two of plaintiff’s
physicians determined that plaintiff was not a good surgical candidate. Id. Plaintiff had been
given a cervical collar in 2007, but her doctor recommended discontinuing its use because it
“would weaken her neck muscles and add to her debilitation.” (R. 325). Plaintiff refused to stop
wearing the collar. Id.
The ALJ also weighed the opinions of the consultative examining physicians and the
nonexamining agency physicians. (R. 326-27). The ALJ summarized those opinions as follows:

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

Dr. Luther Woodcock, a nonexamining agency physician, completed two physical
residual functional capacity assessments. In the first, dated August 2007, he opined that
plaintiff could perform medium work with occasional kneeling and crouching. His
second opinion, dated May 2011, stated that plaintiff could perform sedentary work, with
occasional climbing, balancing, stooping, kneeling, crouching and crawling. The ALJ
gave Dr. Woodcock’s opinions little weight because plaintiff’s pain levels prohibited
medium work. (R. 326-27).



Dr. Walter Bell, also a nonexamining agency physician, completed a residual functional
capacity form in October 2010. Dr. Bell opined that plaintiff could perform light work,
with occasional climbing, balancing, stooping, kneeling, crouching, and crawling.
Plaintiff had an additional limitation to frequent handling and fingering. The ALJ gave
Dr. Bell’s opinion moderate weight because it was “based on the objective findings that
were mostly mild, and did not support more restrictive limitations found in the evidence.”
(R. 325, 327).



Dr. Diane Hyde, a nonexamining agency psychiatrist completed a Psychiatric Review in
September 2010. She opined that plaintiff had moderate depression and anxiety and
“some impairment in functional memory.” For the “paragraph B” criteria, plaintiff had
mild to moderate limitations in all three areas. Dr. Hyde’s mental residual functional
capacity assessment stated that plaintiff could perform simple tasks with routine
supervision and could interact superficially with co-workers and supervisors. Plaintiff
could not interact with the public. (R. 325). The ALJ gave great weight to Dr. Hyde’s
opinion because it was consistent with the evidence and was based on a review of the
medical records and consultative examinations. (R. 327).

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The ALJ also found plaintiff not entirely credible. (R. 326).
Based on this evidence, the ALJ found that plaintiff retained the residual functional
capacity to perform light work with the following restrictions: only occasional climbing,
balancing, stooping, kneeling, crouching, and crawling; frequent, but not continuous handling
and fingering; superficial and incidental interaction with coworkers and supervisors; no
interaction with the public; and only simple, routine tasks. (R. 322).
Plaintiff could not return to her past relevant work as an elementary school teacher or
nursery school attendant, but she could perform other work – light jobs as a housekeeper, light
packager, or fruit cutter and sedentary jobs as a touchup screener, fishing reel assembler, and
hand suture winder. (R. 328-29).
ANALYSIS
Plaintiff argues that the ALJ’s residual functional capacity findings are not supported by
substantial evidence because the ALJ did not properly weigh the medical opinion evidence and
ignored other medical opinion evidence. Plaintiff raises a number of issues with the ALJ’s
analysis of the medical opinion evidence; however, only two issues, the ALJ’s failure to weigh
the opinions of Dr. Wade and Dr. Gourd, require remand.
The ALJ discussed the outcome of the EMG testing on plaintiff’s legs, which was normal
(R. 324), but he did not address Dr. Wade’s comments about plaintiff’s mobility. Plaintiff argues
that Dr. Wade found plaintiff to be disabled based on the fact that she used a wheelchair and
could not “sustain her weight independently.” (Dkt. 14, R. 822). The Commissioner argues that
Dr. Wade’s comments are opinions reserved to the Commissioner and can never be given
controlling weight. (Dkt. 20). The Commissioner also argues that Dr. Wade’s report is
inconsistent with the medical evidence. Id.

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Plaintiff also argues that the ALJ ignored the opinion of consultative examining
physician, Dr. Johnson Gourd. (Dkt. 14). Plaintiff contends that the ALJ did not address Dr.
Gourd’s diagnosis at either step two or step four; therefore, the ALJ’s residual functional
capacity findings are not supported by substantial evidence. Id. The Commissioner contends that
the “one-time diagnosis” is contradicted by multiple objective medical tests and plaintiff’s failure
to establish any functional limitations. (Dkt. 20). The Commissioner implies that the ALJ was
not required to discuss the diagnosis or Dr. Gourd’s opinion at all because the existence of a
diagnosis is not the proper measure of an alleged impairment. Id.
Although plaintiff frames the issue as a question of substantial evidence, plaintiff’s
arguments address the manner in which the ALJ treated the medical opinion evidence. Because
the opinions of Dr. Wade and Dr. Gourd, if adopted by the ALJ, would impact the residual
functional capacity findings and because Dr. Wade would likely be considered a treating
physician, the ALJ erred in failing to discuss and weigh those opinions.
The regulations provide that the ALJ must evaluate all of the medical opinions in the
administrative record. See 20 C.F.R. § 416.927(c). Here, the ALJ gives no indication whether he
considered the opinions of Dr. Gourd and Dr. Wade because he does not discuss them. Dr. Gourd
is clearly a consultative examining physician. Under 20 C.F.R. § 416.902, however, Dr. Wade
very likely would be considered a treating physician; however, it is not clear whether the ALJ
considered Dr. Wade not to be a treating physician, or, as the Commissioner argues, that the ALJ
found Dr. Wade’s opinion to be one on an issue reserved to the Commissioner. Either way, the
ALJ erred in failing to discuss Dr. Wade’s opinion in any context.
If Dr. Wade is a treating physician under 20 C.F.R. § 416.902, then the ALJ was required
to discuss that opinion and the weight given to it. See Doyal v. Barnhart, 331 F.3d 758, 762 (10th

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Cir. 2003) (holding that “[i]n all cases, the regulations require that the ALJ ‘give good reasons’
in the notice of determination or opinion for the weight that is given the treating physician’s
opinion”). Even if, as the Commissioner argues, Dr. Wade’s opinions were opinions on issues
reserved to the Commissioner, “the ALJ was still required to provide an evaluation of the
opinions and explain his reasons for either rejecting or accepting them.” Mayberry v. Astrue, 461
Fed.Appx. 705, 708 (10th Cir. 2012) (unpublished)1 (citing SSR 96-5p).
In this case, it is likely that Dr. Wade would be considered a treating physician. The
records indicate that he saw plaintiff for a number of visits in late 2010 and early 2011. (R. 73740). During those visits, Dr. Wade examined plaintiff and conducted an EMG study of her legs,
which was normal. (R. 740). Dr. Wade also noted that plaintiff had normal strength in her arms
and legs, but she had hyperactive reflexes. (R. 739). He also noted that “[s]he moves primarily in
the wheelchair.” Id. Dr. Wade recommended referring plaintiff to a neurosurgeon, but the record
does not indicate that plaintiff ever saw a neurosurgeon. Id. In February 2011, Dr. Wade
completed a medical release for plaintiff to apply for membership at The Center for Individuals
with Physical Challenges, a group that “provides rehabilitative services, therapeutic recreation,
and leisure activities for persons with physical disabilities.” (R. 821-22). In that release, Dr.
Wade defined plaintiff’s impairment as “proximate extremity weakness” due to cervical spinal
stenosis. Id. Dr. Wade also noted that plaintiff used a walker and wheelchair and was “unable to
sustain weight independently.” (R. 822). He recommended that plaintiff receive gait training. (R.
821).
Even if the ALJ were to determine that Dr. Wade is not a treating physician, the ALJ
would still have been required to evaluate Dr. Wade’s opinion because the ALJ did not give
1

10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
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controlling weight to any treating physician’s opinion. In this case, the ALJ weighed only the
opinions of the consultative examining psychologists and the nonexamining agency physicians.
(R. 326-27). The ALJ discussed the findings of one of plaintiff’s treating physicians, Dr. Stephen
Landgarten, but did not weigh that opinion,2 so the ALJ did not give controlling weight to a
treating physician’s opinion.
If an ALJ determines that the treating physician’s opinion is not entitled to controlling
weight, he must address all of the medical opinions, using the same six factors used to analyze
treating physician’s opinions. See 20 C.F.R. §§ 416.927(c) and (e) (addressing non-examining
physician’s opinions). In that circumstance, the ALJ must also weigh all of the medical opinions.
See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). Keyes-Zachary also holds
that failure to address all opinions can be harmless error, but only when there are no
“inconsistencies either among these medical opinions or between the opinions and the ALJ’s
RFC.” Id. at 1161-62. The harmless error analysis is appropriate when all opinions are consistent
because “[w]hen the ALJ does not need to reject or weigh evidence unfavorably to determine a
claimant’s RFC, the need for express analysis is weakened.” Howard v. Barnhart, 379 F.3d 945,
947 (10th Cir. 2004).
Here, the failure to analyze Dr. Wade and Dr. Gourd’s opinions cannot be considered
harmless error because these opinions conflict with the opinions of the nonexamining agency
physicians and the ALJ’s residual functional capacity findings. The ALJ found that plaintiff
could perform light work, which requires plaintiff to stand and/or walk for six hours in an eighthour workday. If, as Dr. Wade believed, plaintiff could not sustain her weight independently, she
would not be able to walk or stand for six hours. Dr. Gourd’s opinion, in some ways, supports
Dr. Wade’s findings. Dr. Gourd found that plaintiff had a “pronounced shuffling type gait” and
2

Plaintiff does not allege error on the ALJ’s failure to weigh Dr. Landgarten’s opinion.
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required the use of a cane. (R. 673). Plaintiff had full strength and range of motion, but she had
pain with every movement. (R. 673, 674-77). Dr. Gourd also conducted the 18-point
fibromyalgia test and found that plaintiff had tenderness at all eighteen points. (R. 673, 677). Dr.
Gourd opined that plaintiff’s exam was reliable and stated that he believed “she remains
undiagnosed for [the] underlying cause [of her symptoms].” (R. 673). If the ALJ had adopted
either or both of these opinions, the ALJ could not have found that plaintiff could perform light
work. As plaintiff notes in her brief, a finding of sedentary work would likely have rendered
plaintiff disabled due to her carpal tunnel syndrome. (Dkt. 14).
Dr. Gourd’s opinion also warranted discussion because the ALJ gave moderate weight to
the opinion of Dr. Bell, a nonexamining agency physician. (R. 326-27). Ordinarily, a treating
physician’s opinion is given the most weight, followed by the examining physician’s opinion.
See 20 C.F.R. §§ 416.927(c)(1) and (2). Nonexamining physicians’ opinions are normally
entitled to the least weight of all. See id. If the ALJ determined that Dr. Bell’s opinion was due
greater weight than that of Dr. Gourd, the ALJ should have explained his reasons for that
decision.
CONCLUSION
For these reasons, the ALJ should have discussed and weighed the opinions of Dr. Wade
and Dr. Gourd. Accordingly, the Court REVERSES AND REMANDS the case for further
proceedings.
SO ORDERED this 17th day of June 2014.

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